TORTS III CH 14 - PRODUCTS LIABILITY

WHO MAY BE A DEFENDANT - Chattels: Retailer

A retail dealer who sells the good, but has not manufactured it, will have STRICT LIABILITY as well as WARRANTY LIABILITY --even if she could have done nothing to discover the defect. --but this is true only if seller is in business of selling goods of that type (private individual or business person selling outside of usual business will not have liability)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Definition to use

A seller of a product is liable without fault for personal injuries - or other physical harm - caused by product --if product is sold in a defective condition

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Privity

All 3 types of warranty: don't worry about privity --Remote purchaser: all warranties extend to remote purchaser (vertical privity) --Every member of purchaser's household; bystanders: also covered; --a few states don't extend warranties to bystanders (mention the issue)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Defective in D's hands

Be sure product was defective when it left D's hands --Mfr is not strictly liable if product if it changes to a dangerous condition because of bad shipping and handling

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D is a gift-giver

D is not strictly liable

DESIGN DEFECTS - Suitability for unintended uses

D may be liable not only for injuries occurring when product is used as intended, but also for some types of injury stemming from unintended uses of product. --Unforeseeable misuse: if misuse of product is not reasonably foreseeable, D has no duty to design product so as to protect against this misuse --Foreseeable misuse: if misuse is reasonably foreseeable by D, D must take at least reasonable design precautions to guard against danger from that use. --Alternatively, a warning to purchaser against the misuse sometimes may suffice

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers: Inappropriate uses

D must warn that certain uses are not appropriate (weight limit of ladder)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Design defects - General principles

D's failure to include cost-effective technologically-available safety feature often will be a design defect.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Unavoidably unsafe - Case 2 (all items are defective)

Each copy is unsafe, and --each poses the same dangers --unavoidably unsafe is clearly a defense --if product's overall benefits outweigh its overall dangers --Prescription drugs: most common example; even if drug has rare side effects to a few people, as long as D gives adequate warnings, and drug produces a net benefit to some group of patients, --according to Rest 3d, drug is not defective and --P who is injured cannot recover (most courts disagree)

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Express warranty: Endorser's liability

Endorser can be liable for breach of express warranty

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers

Even if product is designed in non-defective way, --D still has duty to warn of any non-obvious dangers --Failure to carry out this duty is evaluated in a way that has aspects of both negligence and strict liability

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may sue, generally

Examine carefully whether P falls within class of persons who may sue

WARRANTY - Implied warranty: Warranty of merchantability

Existence of warranty as to quality of goods can also be implied from fact that seller has offered goods for sale 1. Warranty of merchantability: UCC imposes several implied warranties as matter of law --Most important: "a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." --Meaning of merchantable: goods must be "fit for ordinary purposes for which goods are used." --Seller must be merchant: UCC implied warranty of merchantability arises only if seller is "merchant with respect to goods of that kind." --Seller must be in business and regularly sell those kind of goods.

X. DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption

Important impact on consumers' state product-liability rights: --under doctrine of preemption, federal regulatory action may limit states' freedom to apply usual rules of tort liability to regulated product

STRICT LIABILITY - General rule: Manufacturing, design and failure-to-warn defects - Manufacturing

Manufacturing defect: a particular instance of product is different from - more dangerous than - all others, because --product deviated from intended design

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally

Mention breach o f warranty whenever analyze a product situation: most frequently omitted

DUTY TO WARN - Drug cases

Most common category of failure-to-warn cases involve prescription drugs

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Implied warranty of merchantability: Suit against manufacturer

Normally, merchantability suit is against retailer, --but suit also can be against manufacturer, --as long as mfr was in business of selling goods of that kind --Lessor's liability: merchantability suit can be brought against one who leases rather than sells the goods - most courts allow

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Implied preemption of state tort remedies: Needs direct conflict or impeding of federal enforcement

Not easy for manufacturer to defeat common-law tort claim by use of implied preemption defense --Good rule of thumb: manufacturer D will win with such defense only if it can show either: 1) conduct that P argues D was required to take under state common-law rules conflicts with federal regs, OR 2) allowing the tort recovery sought by P would impede enforcement of federal regulatory scheme --Manufacturers will have tough time making these showings

DEFENSES BASED ON PLAINTIFF'S CONDUCT - Different types of negligence by P: Failure to discover risk

P might "negligently" fail to discover that there is a defect at all --Modern approach: if P's only fault is to fail to discover defect, probably is not really negligence at all (person normally is entitled to assume product not defective) --P's failure to discover will not reduce recovery

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Causation - Reaction to danger

Reaction to an initial danger often is foreseeable, and --thus not superseding

NEGLIGENCE - Classes of defendants:

Several different classes: 1) Manufacturers: most likely negligent; --carelessly designed product --carelessly manufactured product --carelessly performed (or failed) reasonable inspection of finished product --failed to pack & ship in reasonable safe way --did not take reasonable care to obtain quality components from reliable source 2) Retailers: may be, but usually not, liable in negligence: fact that D sold a negligently designed or manufactured product is not by itself enough to show that he failed to use due care. --Retailer ordinarily has no duty to inspect goods (suit against retailer normally warranty or strict liability) 3) Other suppliers: Bailors of tangible property; sellers and lessors of real estate; suppliers of product-related services may all be sued on negligence theory

INTERESTS THAT MAY BE PROTECTED - Property damage: Property damage defined

Since rules for recovering for property damage are easier for P to satisfy than those for recovering "pure economic" damages, the two must be distinguished --Property apart from defective product: if P's property is destroyed by defective product (fire), property damage is recoverable in strict liability --Damage to product itself: where defect causes product itself to be destroyed or visibly harmed, probably not property damage and not recoverable in strict liability --it is intangible economic loss - not recoverable in strict liability --Loss of bargain: if P's damages are because product doesn't work due to defect, or --is worthless with defect - most courts treat as unrecoverable intangible economic harm

DUTY TO WARN - Post-sale duty to warn: Duty to monitor

Some courts have held that manufacturer has duty not only to warn about dangers or defects that it learns about, --but also as an affirmative duty to keep abreast of the field by monitoring the performance and safety of its products after sale. --most likely: prescription drugs

STRICT LIABILITY - Unknowable dangers: Failure to warn

There can be no failure to warn liability for danger whose existence was unknowable at time of manufacture

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Obvious dangers

There is no duty to warn of danger that would be obvious to ordinary person

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Defenses - Assumption of risk

AOR is a defense, --if P acted unreasonably in encountering the danger --Reasonable to ignore warning: if P is reasonable in ignoring warning, and --warning unfairly limits product compared with what a reasonable consumer would expect, --P probably is not bound by AOR

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Distribution channel

Analysis will differ depending on particular defendant's place in distribution channel

WARRANTY - Where warranty useful

Any P who could bring warranty suit will fare better with strict liability suit; EXCEPTIONS: 1) Pure economic harm: if P has suffered only pure economic harm, usually do better suing on breach of warranty theory than strict liability (loss of profits more readily recoverable) 2. Statute of limitations: usually runs sooner on strict liability claim than warranty claim

VII. WHO MAY BE A DEFENDANT - Chattels

Any case involving a good or chattel, both STRICT and WARRANTY liability will apply to any seller in the business of selling goods of that kind

STRICT LIABILITY - Bystanders and other non-user plaintiffs

Any person who is injured due to a dangerously defective product may recover, even if the plaintiff never bought the product --Thus, family members of buyers. bystanders, even rescuers, may all recover if their injuries are proximately caused by defect in the product --privity is not required for strict liability

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Design defects - General principles

Availability of a safer design is important evidence that design actually used was defective

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally

Bulk of analysis typically concern strict product liability, --most of time, furnishes P with best overall chance of recovery

III. WARRANTY - General

Buyer of goods which are not as they are contracted to be may bring action for --breach of warranty --UCC (Uniform Commercial Code): law of warranty (every state except LA) --Two sorts: Express and implied warranties

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Causation - Misuse by purchaser: Failure-to-warn cases

Causation is especially important in FTW; if D can show that P wouldn't have read a warning or would have ignored warning, --then FTW wasn't proximate or But-For cause, and --D won't be liable

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Requirements

Checklist of requirements for STRICT LIABILITY doctrine: --D must be seller --D must have been in business of selling products of this type --Product must have been sold in a defective condition --Product must have been expected to, and did, reach the consumer without substantial change in its condition, and --Product - and its defectiveness - must have been cause in fact and proximate cause of damage to P

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective

Commonly tested issue: --Was product in fact defective?j

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Defenses - Compliance with safety regs

Compliance with govt. safety regs usually is not a defense

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Express preemption

Context of product-liability law: Express preemption: occurs when Congress explicitly says that it intends to take away states' ability to regulate in a particular way. --Supremacy Clause nullifies any attempt by a state to do what Congress has said the state may not do. --Express preemption in medical-device cases: where FDA pre-approves a newly-developed medical device (pacemaker, etc.), user of device generally will not be permitted to recover under state tort law for defect --because court likely will conclude that federal approval expressly preempts state awarding tort damages

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Contributory or comparative negligence

Contributory/comparative negligence can be a defense to a negligence product liability claim, as in other types of negligence cases

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D has sold used goods

Courts are split --most courts say D is NOT liable in strict liability or implied warranty --but there still can be negligence liability

WHO MAY BE A DEFENDANT - Chattels: Used goods

Courts are split whether there is strict or warranty liability for seller of used goods. --probably most courts would hold there is no such liability (used cars)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D is lessor of goods

Courts differ: --whether to apply strict liability and warranty --but there still can be negligence liability

WHO MAY BE A DEFENDANT - Lessor of goods

Courts frequently impose STRICT LIABILITY upon lessor of defective goods (rental car)

DUTY TO WARN - Post-sale duty to warn

Courts have disagreed about extent to which a manufacturer has a duty to make a post-sale warning about dangers of which manufacturer was not aware at time of manufacture

STRICT LIABILITY - Proving the case: Causation - Epidemiology: Specific causation required

Courts normally require proof of specific causation as part of P's prima facie case --however, if P's only direct proof on causation issue is proof of general causation, --courts will permit jury to infer specific causation (if proof of general causation is sufficiently strong) so long as there is also evidence that P was actually exposed to the agent

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Defenses - Contributory and Comparative negligence

Courts vary on whether contributory and comparative negligence are defenses to STRICT PRODUCT LIABILITY --Rest. 3d view: these defenses apply the same way as in a negligence action.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Unavoidably unsafe - Case I (individual defective item)

Defect slips in during manufacturing process, and --no better production process, and --no amount of inspection would prevent this particular unit from being broken - different and more dangerous that the standard one off the assembly line, or --allow D to separate that item from the non-broken ones --Courts are split as to whether product is unavoidably unsafe, but --Rest. 3d's view is that the unavoidability of defect is no defense.

V. DESIGN DEFECTS - Definition of design defect

Design defect must be distinguished from manufacturing defect --in design defect, all similar products manufactured by D are the same, and all bear a feature whose design is itself defective and unreasonably dangerous

STRICT LIABILITY - General rule: Manufacturing, design and failure-to-warn defects - Design

Design defect: all similar products manufactured by D are the same, and --all bear a feature whose design is itself defective, and --unreasonably dangerous

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Design defects

Design defects are most commonly tested type of defect

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Causation

Don't forget causation, especially proximate cause --even in STRICT LIABILITY AND WARRANTY, these elements still must be proved --the defect - not just product - must be proximate cause of P's injuries

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn

Duty to warn is basically an extra obligation

VI. DUTY TO WARN - Significance of duty to warn

Duty to warn is essentially an extra obligation placed on a manufacturer

STRICT LIABILITY - Obvious dangers

Fact that a danger is obvious may have an impact on whether product is deemed defective, and thus on whether D is liable. --treatment of obviousness depends on whether defect is manufacturing defect, design defect, or failure to warn

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Design defects - General principles

Fact that everyone else in industry designs it this way is probative, but not binding, on whether design was defective

STRICT LIABILITY - General rule: Manufacturing, design and failure-to-warn defects - Warning

Failure-to-warn: maker has neglected to give warning of danger in product (or particular use of product), and --lack of warning makes an otherwise-safe product unsafe.

STRICT LIABILITY - Proving the case: Defect existed in hands of defendant

Finally, P must show that defect existed at the time the product left D's hands --Res ipsa: an inference similar to RIL is permitted - once P shows that product did not behave in the usual way, and the manufacturer fails to come forward with evidence that anyone else tampered with it, the requirement of defect in the the hands of defendant is satisfied.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers: Learned Intermediary defense

For drug makers: mfr's duty is to warn prescribing physician rather than patient; --if physician didn't adequately warn patient, mfr is off the hook

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Implied warranty of merchantability: Definition of merchantable to use

Goods are merchantable if they are fit for ordinary purposes for which such goods are used

EXAM TIPS on PRODUCTS LIABILITY

Hard things to do: 1) articulate various theories on which P can recover 2) structure answer into a sensible order 3) spot and analyze various sub-issues: --can bystander recover? --was product unavoidably unsafe? --was there a design defect? --was there a failure to warn?

DUTY TO WARN - Unknown and unknowable dangers

If D can show that it neither knew nor, in the exercise of reasonable care should have known of a danger at the time of sale, most courts hold that there was no duty to warn of the unknown danger

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D is an amateur seller

If D is not in business of selling goods of that kind, --D is not strictly liable

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D is retailer

If D is retailer, --strict liability and warranty --not negligence

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D is a user

If D is user of goods, rather than seller: --D has no strict liability to bystander (often tested)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Causation - Attempted recall

If Mfr discovers problem and tries to recall product to fix it (at mfr's cost), --Owner's refusal to allow probably is superseding --Charge by Mfr: if Mfr charges for attempt to fix: it's not clear whether O's refusal is superseding (not superseding if mfr's charges are unreasonably high)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Causation - Misuse by purchaser: Conscious disregard of warning

If Mfr warns against particular misuse, and --P consciously disregards warning: probably superseding --but P's negligent failure to notice warning is not superseding

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Damages generally - Indemnity

If P can recover against retailer under warranty or strict liability, --retailer may obtain complete indemnity from manufacturer

INTERESTS THAT MAY BE PROTECTED - Intangible economic harm: Combined

If P can show either physical injury or property damage --P may be able to "tack on" intangible economic harm as additional element of damages --certainly will be the case in negligence action, and --might possibly be true in strict liability or warranty

DEFENSES BASED ON PLAINTIFF'S CONDUCT - Different types of negligence by P: Ignoring of safety precaution

If P consciously fails to use available safety device, and --is injured by product defect that would not have led to injury had safety device been used - in most courts, P's failure to use safety device is fault that reduces (not eliminate) P's recovery (hand guard on slicer-dicer)

INTERESTS THAT MAY BE PROTECTED - Intangible economic harm: Direct purchaser

If P is suing the person who sold goods to him: --Warranty: P can readily recover for breach of implied or express warranty --difference between worth of good product v. defective product --also generally recover consequential damages - incl. lost profits --Strict liability and negligence: P probably won't recover intangible economic harm; court will hold that UCC warranty claims intended as sole remedy

DEFENSES BASED ON PLAINTIFF'S CONDUCT - Different types of negligence by P: Use for unintended purpose

If P totally misuses product, D will not be relieved from liability --unless misuse was so unforeseeable or unreasonable that either: 1) the misuse couldn't reasonably be warned against or designed against, or 2) misuse is found to be "superseding" (chair back used as step ladder)

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Intangible economic harm

If P's sole damages are intangible economic harm - lost profits, --warranty theory may be P's best bet --strongest where P bought item directly from D under express warranty --weakest where P sues on implied warranty and was not a purchaser

STRICT LIABILITY - Unknowable dangers

If danger from product's design was unknowable at time of manufacture, there will be no liability (Rest. 3d). --Design defect will exist only when foreseeable risks of harm posed by product could have been reduced or avoided by adoption of reasonable alternative design --If risk of harm from design is unknowable at time of manufacture, there was no foreseeable risk, and thus, no design-defect liability

DUTY TO WARN - Obvious danger

If danger is obvious to most people, --this will be a factor reducing D's obligation to warn --but where a warning could easily be given, and a substantial minority of people might not otherwise know of danger, the court may nonetheless find a duty to warn.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers: State-of-the-art defense

If danger wasn't knowable at time of manufacture, --most courts say there's no duty to warn --Post-sale duty to notify: if mfr later learns of danger: most courts impose a post-sale duty to notify buyer/user of danger

STRICT LIABILITY - Obvious dangers: Failure-to-warn

If defect or danger is obvious, this will normally prevent failure-to-warn liability --if P is actually aware of the obvious danger, the warning won't add anything, and --if P isn't aware of the obvious danger he's unlikely to notice or respond to warning, either

STRICT LIABILITY - Obvious dangers: Design defect

If design defect, under modern view, the obviousness of defect is a factor bearing upon liability, --but it doesn't automatically mean that P can't recover --question is whether design's benefits outweigh its dangers, considering possible alternative designs --if answer is NO, P can recover even though dangers were obvious

DESIGN DEFECTS - Regulatory compliance defense

If manufacturer has complied with federal or state regulations governing design of product, --at common law, compliance does NOT absolve D of product liability --regulatory compliance is an item of evidence that jury may consider, but is not dispositive --Labeling: if govt. requires that substance be designed or labelied in particular way, and --manufacturer follows requirement, under common law, P may still be able to bring product liability suit on theory that design or labeling was inadequate and constituted a defect --Preemtion: but if design in labeling requirement was imposed by Congress, and court finds that Congress intended to preempt the states from requiring stricter or different designs or warning labels, then D has a defense.

DUTY TO WARN - Danger to small number of people

If manufacturer knows that product will be dangerous to small number of people, need for a warning will usually turn on the magnitude of the danger --if danger is great enough, even a small number of potential bad results will require a warning

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Damages generally - Intangible economic harm

If only damage suffered by P is intangible economic harm (lost profits) --choice of theory makes a difference: --Negligence: require P to be member of identifiable class --Implied warranty: P can recover if direct purchaser; if remote purchaser, courts split; if bystander, most courts disallow recovery --Strict liability: most courts disallow recovery for pure economic harm

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Damages generally - Zone of danger rule

If only emotional damage, --then probably the same zone of danger rule applies to strict liability as to negligence

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Breakage or wearing out

If product breaks or wears out before a reasonable consumer thinks it would/should, --this can be a defect

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - No cure by warning

If product is basically dangerous either because of manufacturing defect or design defect, --D can't cure the defect by warning of dangers

DUTY TO WARN - Significance of duty to warn: Design defect

If product is defectively designed, a warning generally will NOT shield D from STRICT PRODUCT LIABILITY

DUTY TO WARN - Significance of duty to warn: Manufacturing defect

If product is defectively manufactured, no warning can save D from STRICT LIABILITY

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Food products

If product is food, anything foreign probably is a dangerous defect if it could cause physical injury

DUTY TO WARN - Significance of duty to warn: Properly manufactured and designed product

If product is properly designed and manufactured, D must nonetheless give a warning if there is a non-obvious risk of personal injury from using the product --D may be liable for NOT giving instructions concerning correct use, if a reasonable consumer might misuse the product in a foreseeable way --Learned intermediary doctrine for drugs: in case of prescription drugs, the warning generally needs to be given only to the physician -- who is a learned intermediary between manufacturer and user -- not to the user

DESIGN DEFECTS - Military products sold to and approved by government

If product is sold to U.S. government for military use, and --govt. approves product's specs, --manufacturer generally will be immune from product liability, --even if design is grossly negligent

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Causation - Misuse by purchaser

If purchaser misuses product in way that is virtually UNFORESEEABLE, --this constitutes a superseding cause --But foreseeable misuse is NOT superseding --most misuse is found to be foreseeable

WHO MAY BE A DEFENDANT - Chattels: Retailer - Indemnity

If retailer is held liable in this way, she will be entitled to indemnity from manufacturer or wholesaler as long as retailer was not herself negligent

DUTY TO WARN - Hidden causation issue

In any failure-to-warn scenario, check that requirement of a causal link between failure-to-warn and resulting injury is satisfied --If provision of a warning would not have prevented the accident from occurring, --defendant will NOT be liable for failing to warn

DUTY TO WARN - Hidden causation issue: P who does not read warnings or ignores them

In case where injured P is the user of product, and --claim is based on D manufacturer's failure to place warning label, evidence that P never read any warning labels would prevent failure-to-warn liability --if there is evidence that even had P read the warning, P would have ignored warning and used product in same way so that accident would have happened anyway, failure to warn will NOT be basis for liability.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Preemption defense

In design-defect or failure-to-warn case, look out for possible preemption defense: --if particular design or warning label that P says was faulty was imposed by Congress, and --court finds that Congress intended to preempt the states from requiring stricter or different designs or warning labels, --then D has a defense

STRICT LIABILITY - Proving the case: Causation - Epidemiology: General v. specific causation

In mass toxic tort cases, this element, like existence of a defect, often will be proved by epidemiological evidence --General v. specific causation: courts often use terms in toxic tort cases: --general causation is a substance's tendency to increase general incidence of given disease --specific causation is substance's having caused P's own disease

WHO MAY BE A DEFENDANT - Lessor of goods: Negligence or warranty liability

Lessor may also be liable for negligence in failing to discover defect, or --on an implied warranty theory by analogy to the UCC

DUTY TO WARN - Risk-utility basis

Liability for failure-to-warn is usually based on a negligence-like risk-utility analysis --Rest. 3d approach: a product will be deemed defective on account of inadequate instructions or warnings when the foreseeable risks of harm imposed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings, and --the omission of the instructions or warnings renders the product not reasonably safe.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers: Prescription drug cases

Look for failure-to-warn isn prescription drug cases --almost always some side effect or allergy potential, and --courts today say that virtually any risk must be warned of

STRICT LIABILITY - Proving the case: Causation - Epidemiology: The doubling rule

Many courts impose so-called doubling rule --jury will be permitted to infer specific causation if and only if P shows that agent more than doubles incidence of the disease in the population as a whole. --these courts reason that without a doubling, it is not more likely than not (preponderance-of-the-evidence standard) that the agent caused P's particular disease

DUTY TO WARN - Drug cases: Learned intermediary doctrine - Doctrine sometimes rejected

Minority of courts have rejected learned intermediary doctrine --manufacturer must make serious efforts to get information directly to the patient, --or be potentially liable for failure to warn --Adequacy of warning: when warning directly to end-user is required, manufacturer must provide, in lay-person language, a warning conveying a fair indication of the nature, gravity and likelihood of the known or knowable risks of the drug.

IX. DEFENSES BASED ON PLAINTIFF'S CONDUCT - General rule of plaintiff's negligence applies

Modern approach: whatever jurisdiction's standard method of dealing with P's negligence, that method applies to product liability actions --In comparative negligence jurisdiction, P's comparative negligence in using a defective product will reduce, but not eliminate D's liability in a strict product liability action

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Implied preemption

Most cases: implied rather than express preemption --Two different ways implied preemption can occur in tort law: 1) Direct conflict 2) federal decision to occupy entire field

DUTY TO WARN - Post-sale duty to warn: Duty to warn when manufacturer learns of the risk

Most common approach is to hold that if manufacturer eventually learns about the risk, --it has an obligation to give a post-sale warning, assuming the risk is great and the user of product can be identified --in this situation, a duty to warn probably exists even though the defect was not knowable at time of manufacture

DUTY TO WARN - Drug cases: Learned intermediary doctrine

Most courts - and Rest.3d - recognize a defense that makes manufacturer's duty to warn in prescription drug cases easier-to-satisfy the learned intermediary defense. --when defense is allowed, manufacturer's duty generally is limited to warning the prescribing physician rather than patient.

DUTY TO WARN - Drug cases: Learned intermediary doctrine - EXCEPTIONS

Most courts that accept learned intermediary doctrine recognize several EXCEPTIONS: --most important one: if health-care provider for that drug will typically not be in a position to pass on the to pass on the manufacturer's warnings, the doctrine does not apply and manufacturer must see to it that warnings actually reach the end user

V. DESIGN DEFECTS - Negligence predominates

Most design defect claims have heavy negligence aspect --even though complaint claims strict liability --Rest. 3d: product has defective design when --the foreseeable risks of harm posed by product --could have been reduced or avoided by --adoption of a reasonable alternative design by seller or other distributor...and --the omission of the alternative design renders the product not reasonably safe

IV. STRICT LIABILITY - General rule

Nearly all states apply doctrine of strict product liability --Basic rule: seller of product is liable without fault for personal injuries caused by product if the product is sold in a defective condition --Once defect is shown to have existed, seller is liable even though he used all possible care, and --even though plaintiff did not buy product from or have any contractual relationship with seller.

WARRANTY - Implied warranty: Privity

Nearly all states rejected any privity requirements for the implied warranties --Vertical privity: not required - manufacturer's warranty extends to remote purchasers further down the line --Horizontal privity: usually not required - any member of household of purchaser can recover if member uses product; in most states, any user, and even any foreseeable bystander, may recover

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Damages generally

Negligence and strict liability cases require physical impact --some physical impact or injury

DEFENSES BASED ON PLAINTIFF'S CONDUCT - Different types of negligence by P

Number of different ways in which P might behave negligently with respect to product

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Fitness for particular purpose

Occasionally mention implied warranty of FITNESS FOR A PARTICULAR PURPOSE --fact pattern: D almost always is retailer, not mfr; --D knows P has special requirements, and --makes recommendation of particular make and model, --which P follows --does not displace warranty of merchantability (both apply)

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Implied preemption: Occupation of entire field

Occurs where federal govt. is found to have intended to occupy an entire field of regulation --if such an intent is found, even state law that does not directly conflict will be preempted --Need for uniformity: Court will give special weight to indications that Congress perceived a need for a uniform national rule, rather than varying state rules --need for manufacturers to have single nationwide system of labels would be important factor pointing a court towards conclusion that Congress intended to occupy entire field

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Express warranty

Occurs where product fails to live up to explicit statements that D made; two main forms: 1) D advertises goods as having certain characteristics 2) labelling contains statements about product

WHO MAY BE A DEFENDANT - Services

One who sells services, rather than goods, does NOT fall within standard strict liability, nor within UCC implied warranties. --Product incorporated in service: if product is furnished in combination with service, most courts (and Rest. 3d) will apply STRICT LIABILITY if product is defective --Services by professionals: where services rendered by health professional, she will almost never be liable in either strict tort or warranty --even if uses defective product

II. NEGLIGENCE - Negligence and Privity

Ordinary negligence principles apply to case in which personal injury is caused by carelessly manufactured product --Privity (every state rejects historic requirement); NOW requirement is: "One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence." --Bystander (as opposed to purchaser or user): P can recover in negligence if he can show that he was a foreseeable plaintiff."

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Ordinary rules apply

Ordinary rules of negligence apply - there's nothing special about negligence in the product context

EXAM TIPS on PRODUCTS LIABILITY - Structuring answer: Generally

Organize in following order 1) At top level, arrange by P -D pair --all claims by P1 v. D1; P1 v. D2; P2 v. D1; P2 v. D2 2) Theories that could be used in each P-D pair 3) Discuss each special issue presented by fact pattern, including theories of recovery in context of special issue; complete discussion of failure-to-warn (as to negligence, strict liability, warranty), followed by complete discussion of design, etc

INTERESTS THAT MAY BE PROTECTED - Property damage: STRICT LIABILITY and NEGLIGENCE

P generally may recover in STRICT LIABILITY and NEGLIGENCE --even though damage consists only of property damage rather than personal injury --Warranties: P might not win on WARRANTY theory, if he is suing a remote D (with whom he did not contract) --2 of 3 versions of UCC 2-318 do not allow P to recover for property damage w/o personal injury

STRICT LIABILITY - Proving the case

P in a STRICT LIABILITY case, must prove a number of different elements: --that item was made or sold by D --that product was defective --that defect caused P's injuries --that defect existed when product left D's hands

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may sue, generally - P is bystander

P is neither purchaser nor user: --Bystander liability is most commonly tested; --Negligence case: bystander may recover if he was reasonably foreseeable --Warranty case: P's right to recover depends on state law --Strict liability case: most courts protect virtually any bystander --Unforeseeable manner of harm: if way bystander gets hurt is really strange, consider possibility that proximate cause is not present because manner of harm was too unforeseeable

DEFENSES BASED ON PLAINTIFF'S CONDUCT - Different types of negligence by P: Knowing assumption of risk

P might be fully aware of defect (mfg. or design) yet voluntarily and unreasonably decide to "assume the risk" of defect --modern trend is to treat assumption-of-risk as form of comparative negligence. --P's decision to use product with known risk was unreasonable, and will cause P's recovery to be reduced (will not serve as absolute bar)

STRICT LIABILITY - Proving the case: Causation

P must show product and its defective aspects were cause in fact and proximate cause of her injuries

STRICT LIABILITY - Proving the case: Manufacture or sale by defendant

P must show that item was in fact manufactured, or sold, by D

STRICT LIABILITY - Proving the case: Existence of defect

P must show that product was defective --Subsequent remedial measures: most courts do not allow defectiveness to be proved by evidence that D subsequently redesigned the product to make it safer --Toxic torts: in case of mass toxic tort, plaintiffs often use epidemiological evidence of defectiveness (DES causes cancer, etc.)

DESIGN DEFECTS - Negligence predominates: Practical other design

P must show that there was a reasonable alternative design (RAD) --in deciding whether P's proposed alternative qualifies as an RAD, court will consider cost and utility of alternative, compared with cost and utility of D's design

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Damages generally - Property damage

P probably can recover for property damage under all three theories

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Damages generally - Preemption

Possibility that federal law has preempted state common-law tort recovery --Labeling cases: especially likely in labeling cases, where maker follows FDA drug or device labeling rules, --it can't at same time follow state common-law FTW rules requiring extra or different warnings

STRICT LIABILITY - Unavoidably unsafe products: Prescription drugs

Prescription drug: not defective merely because it causes some side effects and may in an individual case cause more damage than it cures. --vaccines (under Rest. 3d): drugs, vaccines and medical devices will be non-defective (unavoidably unsafe) as long as there is even a single group of patients for whom the product's benefits outweigh its harms. --Consequence: seems to mean that as long as the drug has a net benefit for one group of patients, maker doesn't need to make drug as safe as it could be with reasonable effort! For this reason, many courts have rejected Rest. 3d drug rule as extreme, and --require manufacturers to make reasonable efforts to make drug as safe as possible

VIII. INTERESTS THAT MAY BE PROTECTED - Property damage

Previous analysis assumes P's injury is personal injury; if P's damages are only of property damage, special rules apply

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Don't worry about privity

Privity doesn't matter --as long as P was a reasonably foreseeable plaintiff - the fact that she was a remote purchaser, or even a bystander --doesn't prevent her from a negligence recovery against a negligent manufacturer --even if product went through several different sellers (wholesale, retailer, original purchaser)

STRICT LIABILITY - What product meets test

Product gives rise to STRICT LIABILITY only if it is defective

I. INTRODUCTION - Three theories

Product liability refers to the liability of a seller of a tangible item which, because of a defect, causes injury to purchaser, user, or sometimes bystanders --usually injury is personal injury; the liability can be based upon any of three theories: 1) Negligence 2) Warranty 2) Strict tort liability

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may be liable - whether D can be liable: D is supplier of services

Product used by D only as tool during provision of services: --Strict liability and warranty do not normally apply --Title transferred to P: where title to the item is transferred to P as part of the service, courts are split --most don't recognize strict liability or warranty liability here

STRICT LIABILITY - Unavoidably unsafe products

Product will not give rise to STRICT LIABILITY if it is unavoidably unsafe, and --its benefits outweigh its dangers

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Design defects - General principles

Quote Rest. 3d's definition: A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor...and the omission of the alternative design renders the product not reasonably safe. --essentially a negligence-based, risk-utility standard

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Compliance with government standards

Regulatory compliance case is different from federal preemption of state law: Regulatory compliance defense asserts that product automatically is not defective --Usually rejected: most jurisdictions do not accept --P is free to show that even though it meets federal regs, it is nonetheless defective --Nearly all states at least allow fact that product meets federal regs to be admitted as non-dispositive evidence of non-defectiveness

DUTY TO WARN - Drug cases: Learned intermediary doctrine - Rest. 3d adopts

Rest. 3d applies learned intermediary rule as the default rule --Rest. 3d imposes failure-to-warn liability on a drug or medical device maker only if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to prescribing and other health-care providers who are in a position to reduce risks of harm in accordance with instructions or warnings.

DUTY TO WARN - Drug cases: Learned intermediary doctrine - Rest. 3d adopts: EXCEPTION

Rest. 3d includes important EXCEPTION to general acceptance of learned intermediary doctrine: --if health-care providers will NOT be in a position to pass on warnings, the manufacturer has a duty to give the warnings and instructions directly to the patient. --if over-the-counter, warnings must be made to consumer - packaging inserts, TV ads, etc.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Manufacturing defects

Rest. 3d test: A product contains a manufacturing defect when product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Express warranty: Retailer's warranty

Retailer is deemed to have made any express warranty that is contained on the product, and --probably to have made any warranty contained in mfr's advertising

DUTY TO WARN - Government labelling standards

Scope of D's duty to warn may be affected by fact that government imposes certain labeling requirements --Evidence: If D can show that it complied with federal or state labeling requirement, --most courts permit this to be shown as evidence that warning was adequate --but this evidence is not dispositive - jury is always free to conclude that a reasonable manufacturer would have given a more specific, or different, warning

WARRANTY - Implied warranty: Fitness for particular purpose

Second UCC implied warranty: --goods are "fit for a particular purpose" --UCC 2-315: this warranty arises where - 1) seller knows that buyer wants goods for particular (and not customary) purpose, and 2) buyer relies on seller's judgement to recommend suitable product

WARRANTY - Express warranties

Seller may expressly represent that her goods have certain qualities: --if goods do not have these, purchaser may sue for breach of warranty 1. UCC 2-213: express warranty may arise - 1) statement of fact or premise 2) description of goods, and 3) use of sample or model --Privity: usually no requirement of privity for breach of express warranty 2. Strict Liability: D's liability for breach of express warranty is kind of strict liability - as long as P can show that representation was not in fact true; does not matter that D reasonably believed it to be true, or even that D could not possibly have known that it was untrue

WHO MAY BE A DEFENDANT - Sellers of real estate

Sellers of real estate sometimes have been subjected to STRICT and WARRANTY LIABILITY when property is dangerously defective. --probably only professional builder, not a consumer who resold the house, would be subject to such liability --unless consumer actively concealed the facts of which he was aware.

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Implied preemption: Direct conflict

Sometimes federal and state law are in direct conflict: state law must yield; two sorts: 1) Impossible for maker of product to comply simultaneously with federal and state regulations 2) objectives behind federal and state regulation are inconsistent

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Implied preemption of state tort remedies

Sometimes manufacturer succeeds with argument that federal regulation preempts states from allowing P to recover for a common-law tort --D typically makes argument that merely allowing a P to recover in tort would itself constitute implicit "regulation" that is inconsistent with federal regulatory scheme - these are cases of implied (rather than express) preemptions of state law by federal law.

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Design defects - General principles

State-of-the-art defense will be accepted in design cases --if at the time of manufacture technology did not yet exist - or wasn't cost-effective - to design device a certain way, the fact that this design became feasible later is irrelevant

STRICT LIABILITY - General rule: Non-manufacturer

Strict product liability applies not only to product's manufacturer, but --also to its retailer, and --any other person in distributive train (wholesaler) who is in business of selling such products

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: Preemption, generally - Implied preemption of state tort remedies: Implied preemption in prescription-drug cases

Such cases often will be found to involve only implied preemption --Congress has given FDA authority to regulate prescription drugs, and not expressly dealt with preemption --Prescription drug cases are harder for D manufacturer to win on preemption theory than medical device cases (harder to establish - implied harder than express)

DEFENSES BASED ON FEDERAL REGULATION, MAINLY THE DEFENSE OF PREEMPTION - Preemption: The Supremacy Clause

Supremacy Clause of U.S. Constitution: federal law takes priority over conflicting state law

WARRANTY - Warranty defenses

Three defenses unique to warranty claims: 1. Disclaimers: under UCC, seller may disclaim both implied and express warranties --Merchantability: seller may make written disclaimer, but only if conspicuous (capital letters or bold print); word: merchantability must be mentioned (implied disclaimer - used goods sold "as is") 2. Limitation of consequential damages: sellers may try to limit the remedies available for breach (sole remedy is repair or replace) --In case of goods designed for personal use (consumer goods), limitation-of-damages clauses for personal injury are automatically unconscionable and thus unenforceable (UCC 2-719(3))

STRICT LIABILITY - General rule: Manufacturing, design and failure-to-warn defects

Three different types of defects that may exist: 1) manufacturing defect, 2) design defect, and 3) warning defect --important to decide which type of defect at issue, because there are different rules of law governing what constitutes a defect of each type

EXAM TIPS on PRODUCTS LIABILITY - Three theories of recovery

Three main theories on which liability might be founded: 1) Negligence - mfg/retailer failure to use reasonable care in design, manufacture, labelling or marketing of product 2) Breach of warranty - express warranty, implied warranty of merchantability, and implied warranty of fitness for particular purpose --misrepresentation - mainly cases of inadequate labelling or false advertising 3) Strict product liability - imposed without regard to fault, for a defective and unreasonably dangerous product LIST/DISCUSS EACH THEORY IN EACH INSTANCE, IF THERE'S ANY CHANCE IT MIGHT BE APPLIED - EVEN IF UNSUCCESSFUL

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Things to remember

Two major things to keep in mind: 1) Care irrelevant: doesn't matter that D used all possible care in designing and manufacturing product --though unavailability of safer alternatives may contribute to finding that product was unavoidably unsafe 2) Applies to retailers: doctrine applies to non-manufacturers who sell --most notably retailers --even though they couldn't possibly have known of the defect or danger

DESIGN DEFECTS - Types of claims

Two types of common design-defect claims are as follows: 1) Structural defects: P shows that, because of D's choice of materials, product had a structural weakness, which caused it to break or otherwise become dangerous 2) Lack of safety features: P shows that a safety feature could have been installed on product with so little expense (compared with both the cost of product and magnitude of danger without without the feature) that it is a defective design not to install the feature. --State of the art: D will be permitted to rebut this by showing that competitive products similarly lack the safety feature -- this is the State of the Art defense --but such a showing will not be dispositive -- the trier of fact always is free to conclude that all products in the marketplace are defective due to lack of an easily-added feature

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Unavoidably unsafe

Unavoidably unsafe products often turn up on exams; there are two different problems

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Express warranty: Picture or model

Use of picture or model can be express warranty

STRICT LIABILITY - What product meets test: Meaning of defective

Usual case of manufacturing defect: product is defective if product departs from its intended design --even though all possible care was exercised in preparation and marketing of product (Rest. 3d)

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers: Labeling problem

Usually, failure-to-warn arises with label

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Strict liability, generally - Defective: Failure to warn - Duty to warn of non-obvious dangers: Lost warning booklet

Warning is part of package when product leaves manufacturer, but --is lost in shipping or by retailer --manufacturer is protected by when it left D's hands rule, --except where danger is so great that reasonable duty to warn required putting label directly on product

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Disclaimer

Warranties can be disclaimed --product marked AS IS: serves to disclaim two implied warranties - merchantability and fitness, --not clear about express warranty

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Express warranty: Strict liability

Warranty is strict - it doesn't matter that D used all reasonable care to make product conform to warranty, or --reasonably thought the product did conform

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Defenses - Compliance with safety regs: Preemption

Watch for possibility that federal govt. has preempted the area --if govt has prescribed warning labels, may mean that feds have occupied entire field of labeling --states cannot impose FTW liability if federal labeling rules have been followed (cigarettes)

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Implied warranty of merchantability

When product is sold by merchant - in business of selling goods of that kind, --merchant is deemed to make implied warranty that goods are merchantable

EXAM TIPS on PRODUCTS LIABILITY - Breach of warranty: Breach of warranty generally - Express warranty: Common-law misrepresentation

Whenever a label or advertising is incorrect, also mention that P can sue for common-law misrepresentation --Rest. 402B: establish liability for one who makes to public a misrepresentation about material fact concerning product

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Distribution channel: D is not a seller

Where D is a lessor, bailor, or user, negligence may be best theory of recovery --warranty and strict product liability are not always imposed on non-sellers

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Distribution channel: D is manufacturer

Where D is manufacturer, "Did D use reasonable care in making the product?" --component selection --design --manufacture --post-manufacture inspection --labeling --generally, negligence theories most useful against manufacturer

EXAM TIPS on PRODUCTS LIABILITY - Negligence recovery: Negligence generally - Distribution channel: D is retailer

Where D is retailer, a negligence claim is much less likely to succeed; in case of product shipped in sealed package, the only ways retailer is likely to be negligent are: --he saw or should have seen from outside of package that something is wrong --he knew or should have known that particular manufacturer was likely to produce bad goods (safety recall in place; retailer ignores or negligently fails to know about) --No duty to inspect: retailer has no duty to inspect the goods he sells; fact that inspection would have disclosed a problem is irrelevant --No imputation to retailer: mfr's negligence is not imputed to retailer

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may sue, generally - P is remote purchaser

Where P bought, but not directly from D: --P probably can recover, at least where physical injury occurs --warranty, negligence or strict product liability

INTERESTS THAT MAY BE PROTECTED - Intangible economic harm: Remote purchaser and non-purchaser

Where P is suing not own seller, but remote person (manufacturer, etc.), he probably will not recover anything if only harm is intangible economic --Warranty: most courts would deny implied warranty; P must sue own immediate seller --Strict Liability: Almost all courts deny recovery to remote buyer --Negligence: Most courts deny P recovery --Non-purchaser (P is bystander): P can't recover on any theory

EXAM TIPS on PRODUCTS LIABILITY - Strict Product Liability: Persons who may sue, generally - P is non-purchaser user

Where P is user, not purchaser: --P is covered under strict product liability and negligence --whether covered under warranty depends on state version of UCC

INTERESTS THAT MAY BE PROTECTED - Intangible economic harm

Where P's damages are found to be solely intangible economic ones (as opposed to personal injury or property damage), P will find much harder to recover

STRICT LIABILITY - Obvious dangers: Manufacturing defect

Where defect is manufacturing, the fact that danger or defect is obvious probably won't block P from recovering --though under comparative fault - generally applicable in products liability cases - it might reduce P's recovery

STRICT LIABILITY - Food products

Where product is food, most courts apply consumer expectations test --Food product is defective if and only if it contains ingredient that a reasonable consumer would not expect it to contain